By Bruce Colbath
(appeared as a letter to the editor in the East Hampton Star Jan 26, 2017 under the title “Callous Power Grab”)
House Republicans have passed legislation that would – if enacted — dramatically alter the way our laws are implemented. This legislation, the REINS Act — recently touted by Representative Zeldin, would require both Houses of Congress and the President to approve virtually all new major regulations issued by federal agencies, subjecting such regulations to the same approval process needed to enact ordinary legislation.
Basically, the REINS Act would require federal agencies to obtain congressional approval for “major” rules: namely including rules having an annual impact on the economy of more than $100 million. Absent such approval, rules may not go into effect. While the bill’s sponsors claim it will improve regulatory policymaking, the REINS Act is not well considered. Actually, it is unclear whether there is an actual problem needing a solution and worse, the Act inevitably will have unintended and significant adverse effects on the economy and society at large. It will also fundamentally (and perhaps impermissibly) change the constitutional structure of our government.
In assessing the utility of the REINS Act, at the outset it is important to understand that historically government regulations have delivered deliver important benefits that greatly exceeded their costs. Accepting the premise that the benefits of regulations have consistently exceeded the costs, the need for legislation that make issuing new regulations more difficult or time consuming is questionable.
In passing the Act, the House believes that federal agencies need more “scrutiny.” This disingenuous rationale ignores that federal agencies are already subject to numerous constraints and checks. Federal agencies are not free to enact regulations at their whim; federal agencies can only enact regulations that Congress has authorized. Thus, these agencies can only issue regulations that implement laws passed by both Houses of Congress and signed by the President.
One unintended consequence of the REINS Act will be the imposition of significant new responsibility on an already overburdened Congress. Typically, in any given year federal agencies issue dozens of major rules that would be caught in the REINS Act net. Going forward, this volume will likely be dwarfed by the promise of the Trump administration to promulgate rules that would eliminate scores of purportedly over-burdensome regulations, and themselves be caught in the Reins Act net. Given its limited capacity, Congress will not have the time to fulfill its REINS Act obligations and also fulfill its ordinary legislative duties. Also, and ironically, in their zeal to grab additional authority, House legislators have unwittingly crafted legislation that would place the Trump deregulatory efforts squarely within the purview of the REINS Act.
Benign and appealing from the surface, the Act offers Congress an avenue to achieve a government shutdown. More perniciously, it seeks to replace a regulatory process heretofore based on expertise, deliberation and transparency with one cloaked in political maneuvering, corporate clout and secrecy.
A more fundamental problem is the Act’s constitutionality. Article II Section 1 of the Constitution grants the executive power to the President. This power includes the responsibility that the executive branch “take care that the laws be faithfully executed.” Over twenty years ago, Chief Justice Rehnquist set forth several tests for whether a statute violates the Constitution’s separation of powers. A statute is constitutionally suspect if it “involve[s] an attempt by Congress to increase its own powers at the expense of the executive branch.” The legislative history underlying the REINS Act suggests that diminishing the power of the executive branch may have been the intent of bill’s sponsors. Further, an act of Congress is constitutionally infirm if it “impermissibly interfere[s] with the President’s exercise of his constitutionally appointed functions,” which, as noted, expressly obligates the executive branch to “take care that the laws be faithfully executed.” Indeed, for over a century, the executive branch has undertaken to execute faithfully the laws by, among other things, developing and issuing implementing regulations.
We should not applaud the zealousness of the House – and Mr. Zeldin – to pass what can only be viewed as a callous power grab. Hopefully, the Senate will be more circumspect as it exercises its review of the Act.